| Banks v New York City Dept. of Educ. |
| 2010 NY Slip Op 01608 [70 AD3d 988] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Celina Banks, Individually and as Parent and Natural Guardian ofTyrone Banks, Appellant, v New York City Department of Education et al.,Respondents, et al., Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrathandVictoria Scalzo of counsel), for respondent New York City Department of Education. Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondents MTA NewYork City Transit Authority and Cono Turchio.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), datedFebruary 11, 2009, as granted those branches of the motion of the defendant New York CityDepartment of Education and the separate motion of the defendants MTA New York CityTransit Authority and Cono Turchio which were for summary judgment dismissing thecomplaint insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The infant plaintiff, Tyrone Banks (hereinafter Tyrone), at the time an eighth grader at I.S.61 on Staten Island, was a passenger on an MTA New York City Transit Authority (hereinafterthe TA) bus, which allegedly was provided for the exclusive transport of I.S. 61 students. Tyronesuffered second and third degree burns on his neck and back when fellow students on the busthrew a lit firecracker, which landed inside his clothing and caused his shirt and jacket to catchon fire. Tyrone's mother, on his behalf and individually, thereafter commenced this actionagainst the New York City Department of Education (hereinafter the DOE), the TA, the busoperator Cono Turchio, and the parents of the three infant students involved in the subjectincident. After discovery, the DOE moved and the TA and Turchio separately moved, inter alia,for summary judgment dismissing the complaint insofar as asserted against each of them. In theorder appealed from, the Supreme Court, inter alia, granted the motions. We affirm the orderinsofar as appealed from.
"Schools are under a duty to adequately supervise the students in their charge and they willbe held liable for foreseeable injuries proximately related to the absence of adequate [*2]supervision" (Mirand v City of New York, 84 NY2d 44, 49[1994]; see Chalen v Glen Cove School Dist., 29 AD3d 508, 509 [2006]). However, aschool's duty to protect its students from negligence is coextensive with and concomitant to itsphysical custody and control over its students (see Pratt v Robinson, 39 NY2d 554, 560[1976]; Molina v Conklin, 57 AD3d 860, 861 [2008]). Therefore, once students leavetheir school's orbit of authority, parents are free to resume custodial control and the school'scustodial duty ceases (see Pratt v Robinson, 39 NY2d at 560; Molina v Conklin,57 AD3d at 862; Bertrand v Board of Educ. of City of N.Y., 272 AD2d 355 [2000]).Here, the DOE demonstrated, prima facie, that its duty to adequately supervise the studentsended once the students were safely aboard the TA bus (see Pratt v Robinson, 39 NY2dat 560; Molina v Conklin, 57 AD3d at 862). In opposition, the plaintiffs failed to raise atriable issue of fact (see Bertrand v Board of Educ. of City of N.Y., 272 AD2d 355[2000]).
Moreover, the TA established its prima facie entitlement to judgment as a matter of law bydemonstrating that no special relationship existed between it and Tyrone (see Weiner vMetropolitan Transp. Auth., 55 NY2d 175 [1982]; Bastien v New York City Tr.Auth., 67 AD3d 716 [2009]; Rios v New York City Tr. Auth., 251 AD2d 484[1998]). In any event, even if such a special relationship existed, the TA established, prima facie,that it acted reasonably under the circumstances (see Crosland v New York City Tr.Auth., 68 NY2d 165, 170 [1986]; Miller v City of New York, 277 AD2d 363[2000]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Harrell v NewYork City Tr. Auth., 221 AD2d 591 [1995]; Katzman v New York City Tr. Auth.,174 AD2d 607 [1991]; Rabadi v County of Westchester, 160 AD2d 858, 859 [1990];Axon v New York City Tr. Auth., 120 AD2d 475 [1986]). Fisher, J.P., Florio, Belen andHall, JJ., concur. [Prior Case History: 22 Misc 3d 1134(A), 2009 NY Slip Op50425(U).]